The International Community and Israel/Palestine Responsibilities, rights and risks in International Humanitarian Law Grietje Baars, Legal Adviser, Diakonia

Obligations of IL don’t end at the State border In IL, an obligation to stop certain violations of others Whether you are involved or not When involved: have to be even more careful –Even if involvement is positive (eg development aid) –The questions to ask, to ensure you don’t fall foul of your legal obligations Focus here is on IHL

IHL: “Common Art. 1” Common to all four Geneva Conventions “The High Contracting parties undertake to respect and ensure respect for the present Convention in all circumstances” Ensuring respect = making sure others are not in breach of the Conventions’ provisions.

The ICRC explains: “It follows, that in the event of a Power failing to fulfill its obligations, the other contracting parties may, and should, endeavour to bring it back to an attitude of respect for the Convention. The proper working of the system of protection … demands in fact that the Contracting Parties should not be content merely to apply its provisions themselves, but should do everything in their power to ensure that the humanitarian principles underlying the Conventions are applied universally.”

Erga omnes obligations … are “the concern of all States. In view of the importance of the rights involved, all States can be held to have an interest in their protection.” The ICJ (Wall Opinion) held that certain of Israel’s IHL violations are violations of erga omnes obligations and thus require specific action by the international community.

ICJ Wall dictum – three operative legal obligations for donors operating in the oPt: 1)Not to recognise the illegal situation resulting from the construction of the Wall 2)Not to render aid or assistance towards maintaining the situation created by such construction, and 3) To take action to end the impediments to Palestinian self-determination resulting from the construction of the Wall and to ensure Israel’s compliance with the Fourth GC.

Comparable obligations in general IL ILC Articles on State Responsibility Art. 41: States shall cooperate to bring to an end any serious breach [… meaning Art. 40: …a gross or systematic failure by a State to fulfill a peremptory norm of IL] Art 41 (2): No State shall recognise as lawful a situation created by [Art. 40] nor render aid or assistance in maintaining that situation” (peremptory norm = very important norm)

How to implement these obligations? Means available include: Diplomatic pressure, coercive measures, measures taken through e.g. the UN Non-renewal of trade agreements, reduction of aid, ban on trade and investment, etc. Countermeasures, use of force The ICRC: “It is clear that Art. 1 is no empty form of words, but has been deliberately invested with imperative force. It must be taken in its literal meaning.”

Obligations of the occupying power The OP has the responsibility to ensure the welfare of the population (Art 43 Hague Regulations) The OP must ensure food, medical services and supplies to the occupied population (Art. 55 GCIV) Relief consignments from humanitarian organisations shall in no way relieve the OP from its responsibilities Obligation to pay reparations for IHL violations => EU Guidelines on promoting compliance with IHL by third countries

Ask the right questions… Guidelines on Aid Effectiveness/Conflict Prevention - “Do no harm” …but need specific legal questions

Assessing our engagement… Do projects include –Recognising annexation of seam zone –Recognising Wall & associated regime –Recognising access restrictions –Forcible displacement of occupied population –Confiscating land/private property –Changing the law/jurisdiction? –Pillage (Siemens case) –Working with “migrant businesses”? NB: PA approval/cooperation - PA can not waive or “sign away” obligations or rights - Art. 47 GCIV

Focus on PSD/FDI States can remain responsible for private sector activities –Agents of the state or acting under control of state –May also violate procurement regulations/other secondary violations Eg: –Private companies/(I)NGOs involved in projects –Embassies/representations - inc. trade cooperation councils Note: companies implementing projects can be easier accountability targets when they don’t have ‘sovereign immunity’

Risks… Questions in Parliament Challenges by taxpayers Legal challenges by public interest lawyers Suits against contractors by victims and interest groups … future?

Safeguards Ask the right questions (checklist?) Adhere to IHL Require partners and contractors to adhere to IHL (contractual provisions, enforcement) Be seen to be complying and lead by example Not just projects, but values of IHL/IL must underlie States’ engagement with Israel/Palestine